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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
ROBERT A. BRAYSHAW,
Plaintiff, Case No. 4:09-cv-373-RS-WCS
CITY OF TALLAHASSEE, FLORIDA,
and WILLIAM N. MEGGS, in his
official capacity as State Attorney,
Second Judicial Circuit, State of Florida,
PLAINTIFF’S RESPONSE TO DEFENDANT MEGGS’ MOTION TO DISMISS
For the reasons set forth below, defendant Meggs’ Motion to Dismiss
(Doc. 34) should be denied.
By this action, plaintiff Brayshaw challenges the constitutionality of
Fla. Stat. §843.17, which criminalizes the publication or dissemination of “the
residence address or telephone number of any law enforcement officer while
designating the officer as such,” both on its face and as applied to his speech.
First Amended Complaint, ¶27 (Doc. 22).
At the outset, plaintiff agrees his facial challenge to the statute is
purely a question of law. The facial validity of the challenged statute is
consequently subject to final determination at this stage of the litigation.
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Statutes identical or nearly identical to the statute challenged here have all
been declared violative of the First Amendment but the State defendant cites
none of them. In any event, a finding of facial invalidity would resolve
plaintiff’s claims against the State defendant who was sued solely in his
official capacity for injunctive and declaratory relief. Doc. 22, ¶7. As shown
below, the statute is unconstitutional on its face. It should, consistent with
the cases striking identical or nearly identical statutes, be declared facially
invalid and its enforcement enjoined.
Meggs’ motion fails to address plaintiff’s second claim, namely that the
statute is unconstitutional as applied to someone who, like him, merely posts
publicly available address information about police officers.
II. FLA. STAT. §843.17 IS FACIALLY UNCONSTITUTIONAL BECAUSE IT IS NOT
LIMITED TO THE NARROW EXCEPTIONS FOR “TRUE THREATS,” “FIGHTING
WORDS,” OR “WORDS LIKELY TO INCITE IMMINENT VIOLENCE.”
A. PLAINTIFF’S SPEECH IS PROTECTED BY THE FIRST AMENDMENT.
First, plaintiff was engaged in the publication of truthful information
which was publicly available on the Internet. 1 Doc. 22, ¶13. Second, plaintiff
published his speech on a police accountability web site, “ratemycop.com.”
1 He desires to continue to do so but has refrained from exercising
his First Amendment rights out of fear of arrest and prosecution. Doc. 22,
¶¶21-23. Having been prosecuted twice under the statute, ¶15, this fear is
certainly credible. See also ¶18: “defendant Meggs’ office would again
prosecute plaintiff if he publishes the name of any ... police officer and their
address or telephone number under the same or similar circumstances ... .”
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Web sites such as these address matters of public concern, namely the
accountability of public officials (in this case Tallahassee Police Department
officers) and their demeanor during the course of their official duties. First
Amended Complaint, Doc. 22, ¶¶8-12. See Sheehan v. Gregoire, 272
F.Supp.2d 1135, 1139, n. 2, 1145 (W.D. Wash. 2003) (noting that plaintiff’s
website on police accountability “communicates truthful lawfully-obtained,
publicly-available personal identifying information with respect to a matter
of public significance”). This website is “analytically indistinguishable from a
newspaper.” Id. at 1145. See also Reno v. ACLU, 521 U.S. 844, 870 (1997)
(“[O]ur cases provide no basis for qualifying the level of First Amendment
scrutiny that should be applied to this medium [of the internet].”). 2 This
discussion of matters of public concern includes the publication of names and
addresses of police officers or others. Sheehan, 272 F.Supp.2d at 1139, n.2;
2 As noted in Ostergren v. McDonnell, 2008 WL 3895593 *9, n.3
(E.D. Va., August 22, 2008):
Indeed, it might be said that the Internet has taken over the
role of traditional print media. It can hardly be contested that
there is an ongoing shift away from traditional print media
toward the internet. See John Ibbitson, Extra, extra, read all
about it--or, sadly, not, The Globe and Mail, July 9, 2008, at A13
(describing year over year nationwide decline in newspaper
circulation and decreased ad revenues as readers turn to the
internet without coordinate advertiser migration); Annys Shin,
Newspaper Circulation Continues to Decline, The Washington
Post, May 3, 2005, at E03 (describing how that year’s decline
“continued a 20-year trend in the newspaper industry as people
increasingly turn to other media such as the Internet and 24-
hour cable news networks for information.”).
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City of Kirkland v. Sheehan, 2001 WL 1751590 *6 (Wash. Super. 2001)
(publication of “names, addresses, birthdates, telephone numbers, … and
other personal information concerning law enforcement personnel and their
relatives”). The Sheehan court concluded:
In this case, as in numerous others, in the absence of a credible
specific threat of harm, the publication of lawfully obtained
addresses and telephone numbers, while certainly unwelcome to
those who had desired a greater degree of anonymity, is
traditionally viewed as having the ability to promote political
speech. Publication may arguably expose wrongdoers and/or
facilitate peaceful picketing of homes or worksites and render
other communication possible.
Id. Accord, U.S. v. White, 638 F.Supp.2d 935, 957-8 (N.D. Ill. 2009)
(publication of name, address and phone numbers – home, cell and office – of
jury foreperson in highly publicized trial constitutionally protected). See also
Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1142-43
(2005) (discussing how the publishing of names and addresses can help
people evaluate and participate in public debate, as well as facilitate lawful
remonstrance and social ostracism). And it includes the re-publication of
information already in the public arena. See also: Ostergren v. McDonnell,
643 F.Supp.2d 758 (E.D. Va. 2009) (republication of publicly obtainable
documents containing un-redacted social security numbers of Virginia
legislators and Virginia clerks of court is constitutionally protected).
Thus, Fla. Stat. §843.17 which criminalizes the publication or
dissemination of “the residence address or telephone number of any law
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enforcement officer while designating the officer as such” must be viewed
through the lens of the First Amendment. 3
B. THE POWER OF GOVERNMENT TO CRIMINALIZE SPEECH HAS BEEN
NARROWLY CONSTRAINED TO THREE EXCEPTIONS: 1) FIGHTING
WORDS, 2) ADVOCACY LIKELY TO INCITE OR PRODUCE IMMINENT
LAWLESS ACTION, AND 3) TRUE THREATS OF VIOLENCE.
The First Amendment provides that “Congress shall make no law …
abridging the freedom of speech … .” 4 The power of government to
criminalize speech has been carefully and narrowly constrained by the
Supreme Court. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571-2
(1942) (“There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which has never been thought to
raise any Constitutional problem”).
Thus, for example, a State may punish those words “which by
their very utterance inflict injury or tend to incite an immediate
breach of the peace.” We have consequently held that fighting
words – “those personally abusive epithets which, when
addressed to the ordinary citizen, are, as a matter of common
3 Defendant Meggs offers no analysis regarding the speech at
issue in this litigation, simply dismissing it out of hand: “[t]here can be no
legitimate or newsworthy purpose to be served by publishing the officer’s
name, residence address and phone number.” Doc. 34 at 2-3. See also id. at 4-
5: “there is nothing that can be deemed ‘newsworthy’ about this type of
information.” “Newsworthiness” is not the test for protection of truthful
information under the First Amendment, and the State defendant provides
no authority for that assertion.
4 The First Amendment applies to state and local governments
under the Due Process Clause of the Fourteenth Amendment. See Board of
Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 855, n.
1 (1982), and cases cited therein.
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knowledge, inherently likely to provoke violent reaction” – are
generally proscribable under the First Amendment.
Furthermore, “the constitutional guarantees of free speech and
free press do not permit a State to forbid or proscribe advocacy
of the use of force or of law violation except where such advocacy
is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.” And the First
Amendment also permits a State to ban a “true threat.”
Virginia v. Black, 538 U.S. 343, 359 (2003) (citations omitted). 5 But even
where a statute plainly encompasses one of these exceptions, the statute
“must be interpreted with the commands of the First Amendment clearly in
mind.” Watts v. United States, 394 U.S. 705, 707 (1969) (viewing statute
criminalizing threats against the President of the United States, concluding
that only a “true threat” can be criminalized). Thus, Florida’s statute must be
evaluated to determine whether it facially proscribes only that speech which
may constitutionally be proscribed.
C. FLORIDA’S STATUTE DOES NOT PASS CONSTITUTIONAL MUSTER.
5 There are, of course, other categories of speech that may be
constitutionally constrained, such as defamation, obscenity and child
pornography, none of which are relevant here. Plaintiff notes that even in
these areas, the Supreme Court has narrowly construed what may be
proscribed. See, e.g.: Milkovich v. Lorain Journal Co., 497 U.S. 1, 13-17 (1990)
(outlining narrowing constructions of speech to which defamation may be
constitutionally applied); Miller v. California, 413 U.S. 15 (1973) (narrowing
definition of obscenity that may be proscribed); Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 255 (2002) (holding statute that banned “virtual”
child pornography unconstitutional, stating that “Government may not
suppress lawful speech as the means to suppress unlawful speech. Protected
speech does not become unprotected merely because it resembles the latter.”).
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1. THE STATUTE PUNISHES SPEECH WHICH DOES NOT FALL INTO
ANY CATEGORY RECOGNIZED BY THE SUPREME COURT AS
UNPROTECTED BY THE FIRST AMENDMENT.
The words prohibited by the statute challenged here – addresses and
telephone numbers in conjunction with the name of a law enforcement officer
– are not “fighting words.” Police officers utter those words in the course of
daily life to merchants, creditors, and the like. Nor is there any suggestion
that uttering this information would be likely to incite imminent lawless
action. Nor are they “true threats.”
Defendant Meggs asserts that the “purpose of the statute is clear from
its face. It is designed in part to prevent a ‘get back’ at a law enforcement
officer by intimidating him or her by putting the officer and family in fear of
harassment, retaliation and other forms of intimidation.” Doc. 34 at 2. 6 The
unstated assumption in this assertion is that the publication or
6 Defendant Meggs later asserts that “[i]t can easily be said that
publishing the name, residence address and telephone number of a law
enforcement officer places that person … at peril.” Id. at 7-8 (emphasis
added). Similarly he asserts that “[p]rotecting law enforcement officers and
their families from intimidation, harassment and threats – including
preventing them from fear of having their lives threatened – and preventing
law enforcement officers from being less than vigilant in the performance of
their duties to protect and preserve the public safety and general welfare, are
compelling state interests.” Id. at 8-9 (emphasis added). Yet the challenged
statute does not require any credible threat that an officer’s life is being
placed in any danger whatsoever or that there be any credible fear of violence
as a result of the proscribed speech. While the State of Florida could
constitutionally proscribe true threats against public officials – see, e.g.,
Watts v. United States, 394 U.S. 705 – Fla. Stat. §843.17 does not do that.
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dissemination of an officer’s address or phone number, together with the
intent to intimidate, hinder, or interrupt the officer in the performance of his
or her duties constitutes a threat that is punishable. But a “true threat” that
may be proscribed consistent with the First Amendment simply does not turn
on the subjective intent of the speaker:
“True threats” encompass those statements where the speaker
means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or
group of individuals. The speaker need not actually intend to
carry out the threat. Rather, a prohibition on true threats
“protect[s] individuals from the fear of violence” and “from the
disruption that fear engenders,” in addition to protecting people
“from the possibility that the threatened violence will occur.”
Intimidation in the constitutionally proscribable sense of the
word is a type of true threat, where a speaker directs a threat to
a person or group of persons with the intent of placing the victim
in fear of bodily harm or death.
Virginia v. Black, 538 U.S. at 359-60 (citations omitted). See also, NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 929 (1982) (publicly reading the
names of persons who disregarded a boycott and threatening that they would
be “disciplined” and saying “we’re gonna break your damn neck” could be
viewed as intending to create a fear of violence but was not sufficient to grant
relief because the speaker had not thereby “authorized, ratified or directly
threatened” acts of violence). And the threat must be measured from an
objective, reasonable person standard – that is, would a reasonable person
construe the communication to be a true threat? See, e.g.: U.S. v. Alaboud,
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347 F.3d 1293, 1297 (11th Cir. 2003); United States v. Callahan, 702 F.2d 964,
965 (11th Cir. 1983).
The Florida statute challenged here requires no true threat, only
subjective intent of the speaker in publishing or disseminating the address or
Publishing name and address of law enforcement officer.
– Any person who shall maliciously, with intent to obstruct the
due execution of the law or with the intent to intimidate, hinder,
or interrupt any law enforcement officer in the legal
performance of his or her duties, publish or disseminate the
residence address or telephone number of any law enforcement
officer while designating the officer as such, without
authorization of the agency which employs the officer, shall be
guilty of a misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083.
Fla. Stat. §843.17. This statute, on its face, punishes speech based upon the
intent of the speaker and is devoid of a requirement of a “true threat” that
could be proscribed consistent with the First Amendment. 7 Assuming that
7 The statute also punishes one who “maliciously” publishes or
disseminates the proscribed information but does not define “maliciously.”
Where a Florida statute does not define “maliciously,” it must be given its
“plain and ordinary meaning.” Seese v. State, 955 So.2d 1145, 1149 (Fla. 4th
DCA 2007), review denied, 968 So.2d 557 (2007) (Table No. SC07-1316).
In law the term malice and its adverbial form maliciously have
two meanings: “legal malice” (also known as “malice in law”),
and “actual malice” (also known as “malice in fact”). Legal
malice means “wrongfully, intentionally, without legal
justification or excuse,” while actual malice means “ill will,
hatred, spite, an evil intent.”
Id. Neither of these definitions changes the legal analysis because neither
requires a “true threat” that may be proscribed consistent with the First
(footnote continued …)
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the Florida legislature could enact a statute that can be constitutionally
applied to prohibit true threats, the current statute is substantially
overbroad “judged in relation to the statute’s plainly legitimate sweep.”
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
As defendant Meggs points out, Florida courts have not limited
§843.07 to only publication or dissemination of the prohibited information in
such a way as to constitute a “true threat” as construed by the Supreme
Court. See Doc. 35 at 2: “The subject statute was enacted in 1972 and is
unaccompanied by a single reported case.”8
This Court cannot provide the necessary narrowing construction unless
it is “readily susceptible” to such narrowing; nor can it “rewrite a state law to
conform it to constitutional requirements.” Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 397 (1988). Federal courts do not sit as Councils of Revision.
U.S. v. Rutherford, 442 U.S. 544, 555 (1979) (“Under our constitutional
framework, federal courts do not sit as Councils of Revision, empowered to
rewrite legislation in accord with their own conceptions of prudent public
policy.”). The Florida Supreme Court cautions likewise in interpreting
Amendment. Rather, they each state a form of subjective intent on the part of
8 Plaintiff notes that some of the significant Supreme Court cases
cited herein were decided after the challenged statute was enacted. Florida’s
legislature thus lacked the Court’s guidance and First Amendment analysis
when it created §843.17.
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Florida law. In invalidating a Tampa ordinance that prohibited loitering in a
manner and under circumstances manifesting the purpose of engaging in
solicitation for prostitution, the Court stated:
We find that it is impossible to preserve the constitutionality of
the Tampa ordinance without effectively rewriting it, and we
decline to “legislate” in that fashion. Courts may not go so far in
their narrowing constructions so as to effectively rewrite
legislative enactments. Even if we were to find that the
ordinance could be preserved facially by writing in requirements
of specific intent to engage in prohibited activity and sufficient
overt activity to clearly manifest that intent, the ordinance still
would be subject to unconstitutional application. A series of
adjudications limiting the application of the ordinance would be
unacceptable because it would result in a chilling effect on
protected speech during the pendency of judicial proceedings
delineating the contours of the ordinance.
Wyche v. State, 619 So.2d 231, 236 (Fla. 1993) (citations omitted).
Narrowing is not possible here – no plain reading of the statute
permits the court to interpret it narrowly so that it only reaches true threats
that may be proscribed consistent with the First Amendment. Simply put,
Fla. Stat. §843.17 criminalizes speech protected under the First Amendment
and bans no category of speech that the Supreme Court has held may be
proscribed. See Virginia v. Black, 538 U.S. at 359-60; Watts v. United States,
394 U.S. 705; Sheehan v. Gregoire, 272 F.Supp.2d 1135; U.S. v. White, 638
F.Supp.2d 935. The statute is facially unconstitutional.
2. THE STATUTE PUNISHES PUBLICATION OF INFORMATION
WHICH IS PUBLICLY AVAILABLE AND DOES SO WITHOUT
SERVING A STATE INTEREST OF THE HIGHEST ORDER.
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“[S]tate action to punish the publication of truthful information seldom
can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co., 443
U.S. 97, 102 (1979). Thus, the Supreme Court has repeatedly ruled that “if a
newspaper lawfully obtains truthful information about a matter of public
significance then state officials may not constitutionally punish publication of
the information, absent a need to further a state interest of the highest
order.” Id. at 103 (emphasis added); Bartnicki v. Vopper, 532 U.S. 514, 527-28
(2001); Butterworth v. Smith, 494 U.S. 624, 632 (1990); The Florida Star v.
B.J.F., 491 U.S. 524, 533 (1989); Landmark Communications, Inc. v.
Virginia, 435 U.S. 829 (1978); New York Times Co. v. United States, 403 U.S.
713 (1971) (government could not prohibit publication of the “Pentagon
Papers” even though they were stolen by a third party).
That plaintiff is not a media representative is irrelevant: “the rights of
the institutional media are no greater and no less than those enjoyed by other
individuals or organizations engaged in the same activities.” Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985); First
Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 802 (1978) (“In short, the First
Amendment does not ‘belong’ to any definable category of persons or entities:
It belongs to all who exercise its freedoms.”) (Burger, C.J., concurring).
Here, the challenged statute simply does not serve “a state interest of
the highest order.” Smith v. Daily Mail Publishing Co., 443 U.S. at 103. Two
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articulated state interests may be gleaned from defendant Meggs’ motion.
First, defendant Meggs makes various assertions that ultimately reflect the
state’s interest in protecting law enforcement personnel from harm. 9 Second,
defendant Meggs proffers that “[t]he decision to address this matter is well
within the State’s exercise of its police power … [and] [i]t does not require
additional citations of authority to demonstrate that protecting those whose
duty it is to enforce the law and protect the citizens from those who would
violate them is the highest of police power exercises.” 10 Doc. 34 at. 3. But
while the protection of law enforcement officers from bodily harm or death
may be a compelling state interest, or even an interest of the highest order, 11
9 Three passages in Meggs’ Motion to Dismiss outline this
concern: “It is designed in part to prevent a ‘get back’ at a law enforcement
officer by intimidating him or her by putting the officer and family in fear of
harassment, retaliation and other forms of intimidation.” Doc. 34 at 2. “It can
easily be said that publishing the name, residence address and telephone
number of a law enforcement officer places that person … at peril.” Id. at 7-8.
“Protecting law enforcement officers and their families from intimidation,
harassment and threats – including preventing them from fear of having
their lives threatened – and preventing law enforcement officers from being
less than vigilant in the performance of their duties to protect and preserve
the public safety and general welfare, are compelling state interests.” Id. at
10 This second articulated interest ultimately rests upon the first –
protection of law enforcement officers. Clearly, the right of the State
generally to exercise its police powers does not constitute an interest “of the
highest order.” Otherwise, given the breadth of the state’s police powers, the
exception swallows the rule.
11 The “lesser included” State interests articulated by defendant
Meggs simply do not rise to the level of “an interest of the highest order” or
even a compelling state interest. See n. 6 & 9, supra. “Preventing law
(footnote continued …)
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the challenged statute does not require that there be a credible threat that an
officer’s life will be placed in any danger whatsoever or that there be a
credible fear of bodily harm or death because of the proscribed speech. While
the State of Florida could constitutionally proscribe true threats against
public officials, 12 §843.17 does not do that. 13 See, e.g., Watts v. United States,
394 U.S. 705. See also Section II.C.1, supra.
enforcement officers from being less than vigilant in the performance of their
duties,” “fear of harassment,” or “other forms of intimidation” fall short of any
sort of true threat. See, e.g., U.S. v. White, 638 F.Supp.2d at 958 (“an
intimidating context alone does not remove the protection of the First
Amendment”). Indeed, it is precisely these sorts of “State interests” that were
found lacking in the defense of a myriad of Florida’s statutes criminalizing or
otherwise prohibiting the release of various information. See, e.g.: See, e.g.:
Butterworth v. Smith, 494 U.S. at 626 (Florida statute prohibiting grand jury
witness from disclosing his own testimony violated First Amendment);
Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005) (state cannot constitutionally
punish speech revealing fact that an internal police investigation is
underway and the facts underlying the investigation); ACLU v. The Florida
Bar, 999 F.2d 1486 (11th Cir. 1993) (state cannot constitutionally prohibit a
judicial candidate from “speak[ing] publicly about truthful information
regarding his opponent, the incumbent circuit judge”); Doe v. Gonzalez, 723 F.
Supp. 690, 695 (S.D. Fla. 1988) (statute that forbade complainant to reveal
the contents of complaint filed with the Florida Commission on Ethics was
unconstitutional, because our society’s “foundation of self-governance
requires that the speech prohibited by the Florida statute be not only
tolerated, but encouraged”); Doe v. Florida Judicial Qualifications Comm’n,
748 F. Supp. 1520, 1526 (S.D. Fla. 1990) (statute prohibiting disclosure of the
filing of ethics complaint against judge is unconstitutional).
12 The State of Washington amended its statute in an effort to do
that following the district court’s decision in Sheehan. See RCWA § 4.24.680
(1): “A person shall not knowingly make available on the world wide web the
personal information of a peace officer … if the dissemination of the personal
information poses an imminent and serious threat to the peace officer’s …
safety or the safety of that person’s immediate family and the threat is
(footnote continued …)
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3. SHEEHAN V. GREGOIRE.
The above principles were synthesized in Sheehan v. Gregoire, where
the court considered a statute providing:
A person or organization shall not, with the intent to harm or
intimidate, sell, trade, give, publish, distribute, or otherwise
release the residential address, residential telephone number,
birthdate, or social security number of any law enforcement-
related, corrections officer-related, or court-related employee or
volunteer, or someone with a similar name, and categorize them
as such, without the express written permission of the employee
or volunteer unless specifically exempted by law or court order.
272 F.Supp.2d. at 1139.
The plaintiff in Sheehan operated a website, www.justicefiles.org,
which criticized police officers. In response to the statute quoted above, he
removed personal identifying information about law enforcement officers,
corrections officers and court employees and volunteers from his site, and
then challenged the statute under the First Amendment. Id.
reasonably apparent to the person making the information available on the
world wide web to be serious and imminent.” Arizona and Colorado have
passed similar statutes. See A.R.S. § 13-2401 and C.R.S. § 18-9-313. There
are no reported cases from any of these jurisdictions regarding such
13 Moreover, like the statute at issue in The Florida Star v. B.J.F.,
the statute here punishes not the person or entity that initially made the
restricted information publicly available, it punishes those who, having found
such information in the public realm, pass the information on. 491 U.S. at
535. See Doc. 22, ¶13 (“This personal information regarding Officer Garrett
was truthful and, at the time, publicly available. Plaintiff obtained this
information through searches on the Internet.”).
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The defendants first defended the statute as proscribing threats. The
Sheehan court rejected the argument:
[O]n its face, the statute does not purport to regulate true
threats or any other proscribable mode of speech, but pure
constitutionally-protected speech. Defendants cite no authority
for the proposition that truthful lawfully-obtained, publicly-
available personal identifying information constitutes a mode of
constitutionally proscribable speech. Rather, disclosing and
publishing information obtained elsewhere is precisely the kind
of speech that the First Amendment protects.
Id. at 1141-42 (footnote and citation omitted). The defendants in Sheehan
cited no historical or anecdotal evidence indicating that the disclosure of
personal identifying information had a long and pernicious history as a signal
of impending violence, like the cross burning at issue in Virginia v. Black,
538 U.S. at 359, which might enable the court to regard it as a true threat.
The district court rejected the notion that revealing names, addresses and
phone numbers, coupled with a subjective intent to intimidate, could
transform pure speech into a true threat. 272 F.Supp.2d at 1143.
The defendants next argued that the statute only banned speech
lacking public significance and served the important state interests of
preventing harassment and retaliation. Id. at 1144. Citing Florida Star, the
district court rejected this argument, finding that the website, a vehicle of
mass communication, was analytically indistinguishable from a newspaper,
and that it communicated truthful, lawfully-obtained, publicly-available
personal identifying information with respect to a matter of public
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significance – police accountability. Id. at 1145. The court noted that Florida
Star also involved a concern with physical safety, that of crime victims who
could be targeted for retaliation if their names become known to their
assailants. Id. at 1145 (citing 491 U.S. at 537). The Supreme Court
nevertheless held that “punishing the press for its dissemination of
information which is already publicly available is relatively unlikely to
advance the interests in the service of which the State seeks to act.” Florida
Star, 491 U.S. at 535. Finally, the Sheehan court noted that, under the
statute, for-profit commercial entities remained perfectly free to sell, trade,
give, or release personal identifying information to third-parties who intend
to harm or intimidate individuals purportedly protected by the statute,
making the statute significantly under-inclusive. Sheehan, 272 F.Supp.2d at
The court thus determined that the statute prohibited constitutionally
protected speech based on content, and that its “with the intent to harm or
intimidate” provision did not alleviate the constitutional problem. The court
rejected the defendants’ contention that the statute could be analyzed as a
time, place and manner regulation aimed at the “secondary effects” of the
speech, i.e. the potential harm to and intimidation of those covered by the
[L]isteners’ reactions to speech or the motive impact of speech on
its audience is not a secondary effect. As plaintiff notes,
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 18 of 27
defendants’ rationale would allow the secondary effects doctrine
to completely swallow the First Amendment. It would grant the
government a dangerous tool to proscribe any speech based
solely on the government’s speculation as to what harms might
result from its utterance.
Defendants assert a compelling state interest in protecting law
enforcement-related, corrections officer-related, and court-
related employees from harm and intimidation ... Any third
party wishing to actually harm or intimidate these individuals
may freely acquire the personal identifying information from
myriad public and private sources, including for-profit
commercial entities, without entering the scope of the statute.
Yet, defendants argue, “Even the fact that an individual may
gather the same information and use that information to harm
someone does not detract from the state’s compelling interest
behind prohibiting the publication or distribution of such
information with the intent to harm or intimidate.” Thought-
policing is not a compelling state interest recognized by the First
Id. at 1146-47 (internal citations and footnotes omitted). The Sheehan court
As the foregoing makes clear, the First and Fourteenth
Amendments preclude the State of Washington from proscribing
pure speech based solely on the speaker’s subjective intent.
Likewise, there is cause for concern when the legislature enacts
a statute proscribing a type of political speech in a concerted
effort to silence particular speakers. Defendants’ position is
troubling. Defendants boldly assert the broad right to outlaw
any speech – whether it be anti-Semitic, anti-choice, radical
religious, or critical of police – so long as a jury of one’s peers
concludes that the speaker subjectively intends to intimidate
others with that speech. This brash stance strikes at the core of
the First Amendment and does not comport with constitutional
requirements. “[P]utting [certain individuals] in harm’s way by
singling them out for the attention of unrelated but violent third
parties is [conduct] protected by the First Amendment.” Planned
Parenthood [v. Am. Coalition of Life Activists], 290 F.3d [1058,]
1063 [(9th Cir.2002)] . . . This Court does not intend to minimize
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 19 of 27
the real fear of harm and intimidation that law enforcement-
related, corrections officer-related, and court-related employees,
and their families, may experience. [J]udges and court
employees are common targets of threats and harassment.
However, we live in a democratic society founded on
fundamental constitutional principles. In this society, we do not
quash fear by increasing government power, proscribing those
constitutional principles, and silencing those speakers of whom
the majority disapproves. Rather, as Justice Harlan eloquently
explained, the First Amendment demands that we confront
those speakers with superior ideas:
The constitutional right of free expression is
powerful medicine in a society as diverse and
populous as ours. It is designed and intended to
remove governmental restraints from the arena of
public discussion, putting the decision as to what
views shall be voiced largely into the hands of each
of us, in the hope that use of such freedom will
ultimately produce a more capable citizenry and
more perfect polity and in the belief that no other
approach would comport with the premise of
individual dignity and choice upon which our
political system rests. To many, the immediate
consequence of this freedom may often appear to be
only verbal tumult, discord, and even offensive
utterance. These are, however, within established
limits, in truth necessary side effects of the broader
enduring values which the process of open debate
permits us to achieve. That the air may at times
seem filled with verbal cacophony is, in this sense
not a sign of weakness but of strength. We cannot
lose sight of the fact that, in what otherwise might
seem a trifling and annoying instance of individual
distasteful abuse of a privilege, these fundamental
societal values are truly implicated.
Id. at 1150 (quoting Cohen v. California, 403 U.S. 15, 24-25 (1971)). Fla. Stat.
§843.17 is unconstitutional on its face.
4. THE STATUTE IS CONTENT BASED AND CANNOT SURVIVE
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 20 of 27
“The First Amendment generally prevents government from
proscribing speech … because of disapproval of the ideas expressed. Content-
based regulations are presumptively invalid.” R.A.V. v. City of St. Paul, 505
U.S. 377, 382 (1992).
Fla. Stat. §843.17 is a content-based restriction on speech. In making
the determination whether a statute is content-based or content-neutral, it is
necessary to “look to the purpose behind the regulation.” Bartnicki v. Vopper,
532 U.S. 514, 526 (2001). “As a general rule, laws that by their terms
distinguish favored speech from disfavored speech on the basis of the ideas or
views expressed are content based.” Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 643 (1994). Content-based restrictions are found where the statute’s
prohibition is “directed only at works with a specified content.” Simon &
Schuster, Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). In
contrast, content-neutral statutes are those which can be “justified without
reference to the content of the regulated speech.” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989). “[A] regulation that serves purposes
unrelated to the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others.” Id. at 791.
Here, Fla. Stat. §843.17 is content-based because its purpose is to stifle
speech of a particular content, namely, speech regarding a law enforcement
officer’s residence address or telephone number. See Simon & Schuster, 502
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 21 of 27
U.S. at 116. The district court in Sheehan, analyzing a Washington state
statute substantially similar to Fla. Stat. §843.17, 14 addressed how the
statute is content-based. See 272 F.Supp.2d at 1145-46. And, as set forth
above, Florida’s statute regulates pure speech because it does not reach only
speech that may be proscribed under the First Amendment, such as true
threats against specific individuals. Content-based restrictions 15 must be
subjected to strict scrutiny. That is, the State must demonstrate that the
“regulation is necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end.” Boos v. Barry, 485 U.S. 312, 321 (1988).
For the reasons set forth in Section II.C.2, supra, while the protection
of law enforcement officers from bodily harm or death (or the credible fear of
such harm) may be a compelling state interest, the challenged statute fails to
require a true threat or a credible fear of bodily harm or death because of the
14 Washington’s statute is set forth in Sheehan at 272 F.Supp.2d at
1139 and at p. 15, supra.
15 Florida’s statute also discriminates upon the basis of the
speaker’s viewpoint. The statute reaches only a speaker with a subjective
intent (ill will) regarding a law enforcement officer; a speaker seeking to
praise an officer and encouraging others to write to her at her home address
to show their support – and providing the address – would not be subject to
punishment under the statute even though both speakers provide the
identical information. Viewpoint discrimination is “an egregious form of
content discrimination” where government “targets not subject matter, but
particular views taken by speakers on a subject.” Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 22 of 27
proscribed speech. Thus, the statute is not narrowly drawn to achieve a
compelling state interest and fails to survive strict scrutiny.
5. FLA. STAT. §843.17 IS VOID FOR VAGUENESS BECAUSE IT
ALLOWS ARRESTING OFFICERS TO MAKE AD HOC
DETERMINATIONS OF THE PURPOSE.
Virginia v Black held unconstitutional a Virginia statute insofar as it
presumed intent to intimidate based solely on the burning of a cross; the
presumption permitted both arrest and conviction for core political speech.
Florida’s statute empowers a police officer to arrest solely on the basis of
publication, leaving to the officer’s unfettered discretion whether the
information was published with the intent set forth in the statute. Just as a
statute that permits a jury to convict solely on the basis of potentially
protected speech is overbroad, a statute that lodges unguided discretion in
police officers to arrest merely on the basis of speech is unconstitutionally
vague. In Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998), the
court considered an ordinance that prohibited parking with the intent to
attract public attention to a sign void for vagueness because it required an
enforcing officer to make an ad hoc determination of the purpose for which a
car was parked. The court wrote that “to enforce the ordinance, a Menlo Park
law enforcement officer must decipher the driver’s subjective intent to
communicate from the positioning of tires and the chosen parking spot.” Id.
The lack of standards for that determination rendered the statute
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 23 of 27
unconstitutionally vague. Id. See also, Sheehan, 272 F.Supp.2d 1135 (holding
a nearly identical statute that forbade disclosure of officers’ personal
information with the “intent to harm or intimidate” void for vagueness
because it required a similar determination of subjective intent); Johnson v.
Carson, 569 F.Supp. 974, 979 (M.D. Fla. 1983); Sult v. State, 906 So.2d 1013,
1019 (Fla. 2005).
As the Supreme Court has noted:
Vague laws offend several important values. First, because we
assume that man is free to steer between lawful and unlawful
conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Second, if arbitrary
and discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. A vague
law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related, where a vague
statute “abut [s] upon sensitive areas of basic First Amendment
freedoms,” it “operates to inhibit the exercise of [those]
freedoms.” Uncertain meanings inevitably lead citizens to “‘steer
far wider of the unlawful zone’ ... than if the boundaries of the
forbidden areas were clearly marked.”
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (citations omitted).
These concerns are particularly evident where, as here, the enforcing officers
are within the very class of persons the challenged statute is intended to
III. FLA. STAT. §843.17 IS UNCONSTITUTIONAL AS APPLIED TO PLAINTIFF’S
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 24 of 27
Aside from the facial challenge, defendant Meggs’ Motion to Dismiss
does not address plaintiff’s as-applied challenge. The specific speech for
which plaintiff was prosecuted contains no constitutionally proscribable
speech. The full posting subjecting plaintiff to prosecution was:
Annette Pickett Garrett, 47 years old, 7 kids, Single, Divorced
Anthony Edward “Tony” Drzewiecki, 38 yo, Home: 1929
Queenswood Drive, Tallahassee, Florida 32303-7123, Home Est.
$167,500. Built in 1973, 1669 square feet. Cingular Cell-Phone:
(850) 228-4567, E-Mail Address: AGARRETIOO@Comcast.net.
Doc. 22, ¶13. This message does not advocate that the reader do anything
with this information, much less “inflict injury or tend to incite an immediate
breach of the peace.” It is not “likely to provoke violent reaction.” Nor does it
constitute a “true threat” by directing “a threat to a person or group of
persons with the intent of placing the victim in fear of bodily harm or death.”
Virginia v. Black, 538 U.S. at 359-60. Hence, even if the statute were not
facially invalid, it was unconstitutionally applied to plaintiff’s speech.
Indeed, the application of the statute to plaintiff’s posting of Garrett’s
name, address and phone number sweeps aside any requirement of a showing
of what defendant Meggs claims is “a high level of scienter built into the
provision.” Motion to Dismiss, Doc. 34, p. 4. Rather, the statute was applied
to plaintiff simply because he posted the name, address and telephone
number of a Tallahassee Police Department officer (without specifically
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 25 of 27
identifying her as an officer in the same posting) 16 without regard to any
level of scienter. 17 Thus, even if this Court determines that the statute is not
facially unconstitutional, defendant Meggs’ Motion to Dismiss should still be
denied as to plaintiff’s as-applied challenge.
Fla. Stat. §843.17 is unconstitutional on its face and as applied.
Defendant Meggs’ Motion to Dismiss (Doc. 34) must be denied. The statute
should be declared unconstitutional on its face and its enforcement enjoined.
Alternatively, the statute was unconstitutionally applied to plaintiff’s speech.
16 Florida’s criminal statutes must be strictly construed. Fla. Stat.
§775.021(1); Perkins v. State, 576 So.2d 1310, 1312 (1991) (“One of the most
fundamental principles of Florida law is that penal statutes must be strictly
construed according to their letter. This principle ultimately rests on the due
process requirement that criminal statutes must say with some precision
exactly what is prohibited. Words and meanings beyond the literal language
may not be entertained nor may vagueness become a reason for broadening a
penal statute.”). The fact that the name, address and phone number of Officer
Garrett was posted on a website about police officers should not suffice to
meet the statute’s plain requirement that the publication or dissemination of
the address or phone number be done “while designating the officer as such
… .” Fla. Stat. §843.17.
17 The other postings by plaintiff were generally critical of Officer
Garrett’s performance as a police officer. Doc. 22, ¶10. Generalized criticism,
coupled with the publication of her name, address and phone number, hardly
rises to an exacting level of scienter. The statute could not be constitutionally
applied to plaintiff’s posting because his speech did not, as a matter of law,
constitute a true threat or other category of speech that may be proscribed
consistent with the First Amendment.
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 26 of 27
/s Randall C. Marshall
Randall C. Marshall, Esq.
American Civil Liberties Union
Foundation of Florida, Inc.
4500 Biscayne Blvd., Ste. 340
Miami, FL 33137
(786) 363-1108 (facsimile)
James K. Green, Esq.
JAMES K. GREEN, P.A.
Suite 1650, Esperant3
222 Lakeview Ave.
West Palm Beach, FL 33401
Florida Bar No: 229466
(561) 655-1357 (facsimile)
Anne Swerlick, Esq.
2425 Torreya Drive
Tallahassee, FL 32303
Phone: (850) 385-7900 x 1813
Fax: (850) 385-9998
Cooperating Attorneys for the ACLU
Foundation of Florida, Inc. – Tallahassee
COUNSEL FOR PLAINTIFF
Case 4:09-cv-00373-RS-WCS Document 42 Filed 01/29/10 Page 27 of 27
Certificate of Service
I certify that the foregoing document was filed electronically on
January 29, 2010, using the court’s ECF system, which automatically serves
counsel of record through electronic mail.
/s Randall C. Marshall
Randall C. Marshall